HOWARD JOHNSON COMPANY, APPELLANT,
v.
DIVISION OF ADMINISTRATION, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, APPELLEE
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Howard Johnson Company appeals a condemnation proceeding in which it sought business damages for temporary loss of revenue during highway construction. The court affirmed the lower court's denial of business damages, holding that losses caused by construction activities and temporary impairment of access are not compensable under Florida condemnation law.
The court held that business damages under section 73.071(3)(b) are compensable only for the effect of the taking of the owner's land on an established business, not for damages caused by construction activities or temporary impairment of ingress and egress. Losses suffered by all property owners abutting highway construction are not compensable as they constitute damnum absque injuria (damage without legal injury).
[1] Business damages in condemnation proceedings are predicated upon the effect the taking of an owner's land for a right-of-way has upon such a business, not upon the effect…
[2] Consequential damages resulting from construction activities, such as noise, vibration, and dust, are not compensable in condemnation proceedings.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“These special business damages authorized by the statute are predicated upon the effect the taking of an owner's land for a right of way has upon such a business and not upon the effect the construction ... of a roadway has upon such a business.”
Establishes the critical distinction that compensable business damages arise from the taking itself, not from construction activities.
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Join FLexlaw to unlock all legal intelligenceThe state condemned one parcel of land in fee simple and a construction easement over another parcel, both occupied by Howard Johnson as a tenant unde…
The full statement of facts, procedural history, and disposition for this case are member content.
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HERSEY, Judge.
In condemnation proceedings appellant unsuccessfully sought business damages and brings this appeal.
The condemnation proceedings involved the taking of one parcel of land in fee simple and the taking of a construction easement over another parcel of land, both of which were occupied by appellant as tenant under a lease extending for more than five years.
The statute upon which appellant relies in seeking business damages, section 73.071(3)(b), Florida Statutes, delineating the extent of compensation, provides:
Where less than the entire property is sought to be appropriated, any damages to the remainder caused by the taking, including, when the action is by the Divi sion of Road Operations of the Department of Transportation, county, municipality, board, district or other public body for the condemnation of a right-of-way, and the effect of the taking of the property involved may damage or destroy an established business of more than 5 years’ standing, owned by the party whose lands are being so taken, located upon adjoining lands owned or held by such party, the probable damages to such business which the denial of the use of the property so taken may reasonably cause; any person claiming the right to recover such special damages shall set forth in his written defenses the nature and extent of such damages ....
Appellant’s interpretation of this provision is indicated by the following colloquy between counsel and the court:
THE COURT: Would you make this distinction, again, of the type of damages you’re seeking, here? Is it damages that were sustained during the construction period or after the construction period? Did you make a distinction of that?
MR. MANDELL: During the construction.
THE COURT: During the construction?
MR. MANDELL: Yes, Your Honor, but these are not severance-damages, this that we’re asking for. These are business loss damages which are as result of the effect of the taking.
THE COURT: You are claiming business loss damages during the construction period?
MR. MANDELL: That’s correct, Your Honor. The record demonstrates that appellant seeks damages for a temporary loss of business during construction of the expansion of the highway occasioned by use of the parcel taken as an easement and the noise, vibration, dust and related nuisances resulting from the construction.
It is well established that such consequential damages are not compensable in condemnation proceedings. In State Road Dep’t v. Lewis, 170 So. 2d 817 (Fla.1964), the Florida Supreme Court indicated that:
These special business damages authorized by the statute are predicated upon the effect the taking of an owner’s land for a right of way has upon such a business and not upon the effect the construction ... of a roadway has upon such business.
Id. at 819. See also Leeds v. City of Homestead, 407 So. 2d 920 (Fla. 3d DCA 1981), and Division of Admin., State Dep’t of Transp. v. Hillsboro Ass’n, 286 So. 2d 578 (Fla. 4th DCA 1973). Further, an owner sustains no enforceable claim for damages resulting from incidental impairment of rights to ingress and egress. Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457 (Fla.1891).
Appellant was not seeking severance damages. Instead, the damages of which appellant complains are those which would be suffered in common by all owners of property abutting the new construction, and (as we previously indicated) such damages are not compensable in condemnation proceedings. In Anhoco Corp. v. Dade County, 144 So. 2d 793 (Fla.1962), Anhoco was entitled to severance damages for the destruction of its access. However, the court added:
[W]hen assessing any damages suffered[,] [the landowner] is not entitled to recover for losses occasioned merely by the customary limitations on the flow of traffic over a highway which is being constructed under so-called “traffic conditions.” Every business abutting an established highway which is being reconstructed suffers the same type of loss. To this extent any damage suffered is damnum absque injuria.
Id. at 799.
Accordingly, we affirm.
DOWNEY and DELL, JJ., concur.
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State v. Weggies Banana Boat, 576 So. 2d 722 (Fla. 2d DCA 1990)…s not include a right to recover for damages caused by a change in an adjacent highway, but is limited to damages attributed to the loss of the taken property. State Road Department v. Lewis, 170 So. 2d 817 (Fla.1964); see Howard Johnson Co. v. DOT, 450 So. 2d 328 (Fla. 4th DCA 1984); see generally Florida Eminent Domain Prac. & Proc. § 9.28 (4th ed. 1988) (W. Earle, L. Block, Jr., H. Hunter, B. Davidson). In this case, both the experts’ testimony and the direct evidence underlying their opinions adequately s…
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Fla. Audubon Soc'y v. Nat Ratner, 497 So. 2d 672 (Fla. 3d DCA 1986)…ensation for taking), cert, denied, 222 So. 2d 752 (Fla.1969). Moreover, “an owner sustains no enforceable claim for damages resulting from the incidental impairment of rights to ingress and egress.” Howard Johnson Co. v. Division of Administration, 450 So. 2d 328, 329 (Fla. 4th DCA 1984). The evidence demonstrates that alternative means of access were available to Ratner. The damage Ratner suffered, being common to all landowners abutting the District’s canal system, is not compensable. See Howard Johnson Co…
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Legare v. Music & Worth Constr., Inc., 486 So. 2d 1359 (Fla. 1st DCA 1986)…ect from Hourdequin and Associates, Inc., who was subsequently voluntarily dismissed from this action by appellants. . See, e.g., Anhoco v. Dade County, 144 So. 2d 793 (Fla.1962) (dicta); Howard Johnson Company v. Division of Administration, et al, 450 So. 2d 328 (Fla. 4th DCA 1984); City of Orlando v. Cullom, 400 So. 2d 513 (Fla. 5th DCA 1981), pet. for rev. den., 411 So. 2d 381 (Fla.1981). . In the current posture of this case, it is doubtful that appellees could prove such prejudice since, as parties to…
Authorities Cited
- Anhoco Corp. v. Dade Cnty., 144 So. 2d 793 (Fla. 1962)
- Selden v. City of Jacksonville, 28 Fla. 558 (Fla. 1891)
- State Rd. Dep't of Fla. v. Lewis, 170 So. 2d 817 (Fla. 1964)
- Division OF Administration v. Hillsboro Ass'n, Inc., 286 So. 2d 578 (Fla. 4th DCA 1973)
- State v. Trent Pittman, 407 So. 2d 920 (Fla. 3d DCA 1981)
- Leeds v. City OF Homestead, 407 So. 2d 920 (Fla. 3d DCA 1981)